Factual and Procedural Background
This judgment arises from an appeal by the Foreign Secretary against a Divisional Court decision ordering the publication of seven redacted sub-paragraphs from its initial judgment in proceedings brought by the Appellant. The appeal was dismissed unanimously after three separate judgments, concluding 18 months of protracted litigation. The judgments, comprising 296 paragraphs, were circulated in draft form confidentially to the parties before being handed down. The present judgment focuses on paragraph 168 of the Master of the Rolls' judgment, which attracted significant public attention due to amendments made after receipt of a letter from counsel for the Foreign Secretary. The court details the procedures surrounding the circulation and amendment of draft judgments, the confidentiality principle governing such drafts, and the unusual circumstances leading to the partial and subsequent full publication of paragraph 168 and associated materials.
Legal Issues Presented
- Whether the seven redacted sub-paragraphs of the Divisional Court's judgment should be made public, despite the Foreign Secretary's claim of public interest immunity.
- Whether the confidentiality principle attaching to draft judgments, specifically paragraph 168, should be waived to allow publication of the first draft.
- The proper procedure and principles governing amendments to draft judgments following communications from counsel prior to final judgment delivery.
- The extent to which public interest and open justice considerations justify disclosure of sensitive material in the context of intelligence and security service involvement.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Robinson v Fearsby [2003] EWCA Civ 1820 |
Exceptional circumstances may justify reconsideration of draft judgments beyond typographical corrections. |
Referenced to illustrate the rare occasions when courts may reconsider parts of draft judgments on substantive grounds. |
| R (Edwards) v The Environment Agency [2008] 1 WLR 1587 |
Same as above, relating to reconsideration of draft judgments in exceptional circumstances. |
Used to support the principle that draft judgments are not immutable and may be amended before finalization. |
Court's Reasoning and Analysis
The court explains the established practice of circulating draft judgments confidentially to parties for correction of typographical or similar errors, emphasizing that such circulation does not permit reopening or rearguing the case. However, on rare and exceptional occasions, reconsideration of substantive parts of draft judgments can be invited, provided all parties are informed to allow objections.
Following receipt of a letter from counsel for the Foreign Secretary raising "an important matter of substance" regarding paragraph 168, the Master of the Rolls amended the draft paragraph without initially receiving objections, circulating a second draft. Subsequently, objections emerged, revealing procedural deficiencies in the handling of the letter and amendments.
The court recognized that paragraph 168 in its amended form was still a draft and that the final form would be determined after further submissions. The confidentiality principle governing draft judgments was breached when the letter from counsel was widely circulated and published, which the court condemned, emphasizing that confidentiality should only be waived by court order.
Given the exceptional circumstances, including significant public interest and the potential for misleading public perception of ministerial interference, the court decided to waive confidentiality and publish the original first draft of paragraph 168. This would allow the draft to "speak for itself" without the interpretive overlay introduced by counsel's letter, thereby promoting transparency and preserving the integrity of the administration of justice.
Lord Neuberger finalized paragraph 168 after considering submissions and revisiting the Divisional Court’s closed judgments. He concluded that while the Foreign Secretary's certified opinion should be adopted on the facts at the time of the Divisional Court's decision, the redacted sub-paragraphs should nonetheless be published in light of subsequent events. He refined paragraph 168 to address concerns about fairness, accuracy, and clarity, removing references unjustified by evidence and ensuring the paragraph properly reflected the court’s reasoning regarding the involvement of Security Service personnel in the mistreatment of the Appellant.
Holding and Implications
The court's final decision was to WAIVE THE CONFIDENTIALITY attaching to the first draft of paragraph 168 and to publish it alongside the final judgment. The appeal by the Foreign Secretary against the publication of the seven redacted sub-paragraphs was dismissed, concluding the litigation subject to costs.
The direct effect is the immediate and full disclosure of the previously redacted material and the first draft paragraph 168, enhancing transparency and open justice. No new precedent was established beyond the reaffirmation of existing principles governing draft judgments and confidentiality. The judgment underscores the importance of open justice and the careful balancing of confidentiality against public interest, particularly in cases involving sensitive intelligence matters.